NEW JERSEY LAWYER

DAILY BRIEFING      08/23/2005


News Briefs

PROBATION OFFICIALS DEFEND COLLECTION POLICIES
Officials at agencies charged with collecting court-ordered restitution and fines are countering accusations that their operations don’t collect fast enough. The allegations arose amid reports in The Record of Hackensack that a Bogota man is receiving just $1,000 per month in restitution from a con artist who swindled $295,000 from him. Collection officials told The Record that enforcing payments too quickly could financially cripple those ordered to pay and possibly result in no payments. “It’s like fishing; if you pull the line too fast and too hard, you will lose the fish,” said Thomas O’Reilly, a court officer in a state payment enforcement plan. “You have to maintain a balance or you might push these people into committing crimes to come up with the money,” said John Fuhrman, chief of Bergen County’s Probation Department. The Bogota victim, William Squitieri, has countered, “If he doesn’t have the money to pay me back, that’s his problem. Let him work two jobs.” 8-22-05

SEX-PREDATOR RESIDENCE BANS CRITICIZED AS WORTHLESS
New Jersey municipal ordinances restricting where convicted sex offenders can live are being criticized as political gestures with no merit. John La Fond, a law professor at the University of Missouri-Kansas City and author of a book on how to cope with sex offenders, says the ordinances are “symbolic gestures that will have no effect on preventing more sex crimes and will create more obstacles for sex offenders.” Ernie Allen, head of the National Center for Missing and Exploited Children, said such ordinances are of “limited value” and less important than mechanisms that let authorities monitor where offenders spend their time. Joseph Scarpelli, mayor of Brick, which recently banned offenders from living near day-care centers and schools, noted, “It’s pretty tough if someone introduces ordinances like this, to vote no.” Convicted sex offenders, though, have complained such ordinances are too tough and, in effect, prevent them from living virtually anywhere in towns that have enacted them. 8-22-05

DEATHS AT STATE PRISONS DROP DRAMATICALLY
Prisoner rights advocates are crediting improved medical care and prison officials’ heightened awareness as factors in a major decline in deaths behind bars. State prison homicide rates dropped 90 percent, suicides declined 60 percent and deaths from AIDS dipped 20 percent between 1980 and 2002, according to the Justice Department’s Bureau of Justice Statistics. Lindsay Hayes, project director for the National Center on Institutions and Alternatives, credited improvements in screening, training and in mental and medical staff at the prisons. The drop also may be the result of lawsuits filed on behalf of prisoners seeking improved living conditions, said Kara Gotsch, public policy director for the American Civil Liberties Union’s National Prison Project. 8-22-05

LAWYER CANNOT BE FIRED FOR FOLLOWING ETHICS RULE, JUDGE FINDS
A law firm cannot fire an attorney for following a state’s rules of professional conduct, a state court judge in Connecticut has ruled. Judge Carmen Lopez found that Delaney, Zemetis, Donahue, Durham & Noonan in Guilford, Conn., could not use the state’s employment-at-will doctrine to fire an associate who sought to file a grievance against another lawyer for suspected witness-tampering. “Because the legal profession is self-regulated and relies on its members to police itself, no lawyer’s employment should be conditioned to turning a blind eye to violations,” the judge wrote. The associate said a partner had told him, “We do not grieve other lawyers,” when he sought permission to file a report under a state ethics rule for lawyers. The firm argued the rule “does not rise to the level of an important public policy” that would warrant an exception to an employer’s basic right to fire an employee. 8-22-05

WEBSITE LETS DRIVERS COMPLAIN ABOUT SPEED TRAPS
Drivers arrested for speeding are using the internet to voice their objections. The speedtrap.org website, operated by the National Motorists Association, lets people weigh in with what they believe are speed traps. Listings from New Jersey span the state including a Wildwood Crest site, where a driver says he was stopped not just for speeding, but also because he had out-of-state tags. Police Lt. David Meyer said the department doesn’t target out-of-state drivers. The association, known for its opposition to speed limits, says its site gets 20,000 visitors monthly. 8-22-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, AUGUST 22, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, AUGUST 22, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, AUGUST 23, 2005.


APPROVED FOR PUBLICATION
LAND USE
HOUSE OF FIRE CHRISTIAN CHURCH v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF CLIFTON
Appellate Division, A-2019-03T2, approved for publication August 22, 2005. (30 pages). Facts-on-Call Order No. 92631

In a land use case arising from the plaintiff church’s application for variance relief to demolish a single-family home and to build a new church facility in its place in the defendant City’s Single Family Residential Zone, the trial court properly remanded the application to the defendant Zoning Board for a consolidated hearing. However, the trial court erred by invalidating the City’s amended rear-yard setback ordinance, by concluding that the City violated the federal Religious Land Use and Institutionalized Persons Act of 2000, and by requiring the City to pay attorney’s fees and costs incurred by the church.

NOT APPROVED FOR PUBLICATION
ESTATES AND TRUSTS
IN RE HUSARIK
Appellate Division, A-395-04T1, August 22, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18408

Portion of the judgment in a guardianship action that confirmed in the respondent son ownership of certain real estate and entitlement to certain proceeds from the incapacitated father affirmed; the trial court (1) found that the elderly father was mentally incapacitated, (2) found that the respondent, with whom the father resided, was not providing the necessary care and was incapable of serving as guardian, (3) appointed the father’s daughter as his guardian, (4) found that the father was not mentally incapacitated when he transferred title in his home and $25,000 from a personal injury award to the respondent, and (5) found no undue influence by the respondent; the record did not indicate any misunderstanding or misapplication of the relevant legal principles by the trial court, which “realistically” considered “the history of the familial relationships involved and the personal dynamics that prevailed.”

ENVIRONMENTAL LAW
IN RE EXXON MOBIL THE BAYONNE TERMINAL
Appellate Division, A-6167-03T2, August 22, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18411

Department of Environmental Protection’s denial of the appellant Exxon Mobil’s request for an administrative hearing affirmed; Exxon Mobil asserted that the DEP’s Demand for Stipulated Penalties constituted an enforcement action or other agency determination that entitled it to an administrative hearing to contest the basis for the Demand; on the other hand, the DEP argued that the Demand was a settlement offer that was coupled with a threat that, if payment was not forthcoming, the matter would be forwarded to the Attorney General for enforcement; the Demand was not a civil penalty assessment under N.J.A.C. 7:26C-10.1(a)(2) that would become final if Exxon Mobil did not request a hearing to contest it; instead, the Demand was a formal demand for penalties that was required by the parties’ administrative consent order and a settlement offer that was coupled with a threat to file an enforcement action if the settlement was not accepted; Exxon Mobil’s request for a hearing was a demand for a “pre-enforcement review” to which Exxon Mobil had agreed in the consent order it was not entitled.

UNEMPLOYMENT BENEFITS
GALLARDO v. BOARD OF REVIEW
Appellate Division, A-2160-04T2, August 22, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18410

Final decision of the Board of Review that denied the appellant’s claim for unemployment benefits affirmed; the employer contended that the appellant left work voluntarily, and it opposed her claim; the appellant testified that she left work due to a work-related injury but that she was unable to return to work if it was available because she continued to receive therapy for her back and because she lacked transportation to work; she further testified that she was not seeking work due to her back condition; the Appeal Tribunal determined that the appellant was disqualified from receiving unemployment benefits pursuant to N.J.S.A. 43:21-4(c) because she was not able to work, was not available for work, or was not actively looking for work; the Board’s decision, which affirmed the Appeal Tribunal, was supported by the record and was consistent with the law.

PARENT AND CHILD
DIVISION OF YOUTH AND FAMILY SERVICES v. J.B.
Appellate Division, A-3520-04T4, August 22, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18412

Order denying the defendant mother’s motion to vacate a default judgment and terminating her parental rights affirmed; the trial court properly concluded that the best interests of the child required that the default judgment remain in place and that the mother had made no showing of a meritorious defense, especially in light of her history as a drug user, the fact that the child had been born a heroin addict, and the mother’s “inadequate, desultory and unavailing efforts to reform her conduct”; contrary to the mother’s assertion that the default judgment should not have been entered because an attorney had not been assigned to her to represent her interests, the record demonstrated that she had received “repeated exhortations” to apply for the assignment of counsel but had “failed to accomplish even that simple task as an exercise of personal responsibility and an indication of genuine interest.”

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.N.
Appellate Division, A-1348-04T4, August 22, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18409

Termination of the defendant father’s parental rights to his three children affirmed; the father had an “extensive history” of drug abuse, alcohol abuse, and domestic violence, and he did not cooperate in a meaningful way with the plaintiff Division of Youth and Family Services’ efforts to provide him with services; the father lived with the mother, whose parental rights already had been terminated because of her psychological and substance abuse problems; the children had bonded with their foster parents, who wished to adopt them; the trial court applied the correct legal standard and properly concluded that the termination of the father’s parental rights was in the best interests of the children.

POST-CONVICTION RELIEF
STATE v. DREHER
Appellate Division, A-5273-03T3, August 22, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18407

Denial of the defendant’s petition for post-conviction relief affirmed substantially for the reasons expressed by the trial court; after a retrial on remand, the defendant was convicted of murdering his wife, and he was sentenced to life in prison with 30 years of parole ineligibility; after failing in his various attempts to overturn his conviction, the defendant filed a federal writ of habeas corpus, which also ultimately failed; when the defendant petitioned for post-conviction relief more than eight years after his conviction, the trial court held that the PCR claims were procedurally barred under five-year limitations period of Rule 3:22-12(a) and that they lacked merit; the record supported the trial court’s conclusions; the pursuit of federal habeas corpus relief generally does not extend the time for filing a PCR petition in state court, and the defendant did not establish justification for relaxing the time bar.

HUSBAND AND WIFE
PAFUMI v. PAFUMI
Appellate Division, A-4231-03T3, August 19, 2005, not approved for publication. (19 pages). Facts-on-Call Order No. 18406

Post-divorce-judgment order that partially granted the defendant ex-husband’s request for the return of an overpayment of spousal support under the parties’ pre-marital agreement and that reduced the ex-husband’s child support obligation affirmed in part and remanded; the agreement limited the ex-husband’s spousal support obligation to $10,000; the trial court properly granted summary judgment for the ex-husband on the ex-wife’s claim that the agreement was invalid at the time of execution; however, remand was required on the ex-wife’s claim that the agreement was unconscionable at the time of enforcement due to changed circumstances arising from her cancer, which had been dismissed without permitting her to conduct discovery and develop economic issues; on remand, the issue of child support must be addressed, and the trial court has discretion to define the scope of further proceedings on the other economic issues, including spousal support based on the agreement’s unconscionability at the time of enforcement.


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